Summary: Mrs D complained that the Council failed to make alternative educational provision for her child while they were unable to attend school for illness or other reasons. The Council has accepted fault. This has caused Mrs D’s child to miss out on education for two terms. The Council has agreed to make a symbolic payment to Mrs D to remedy that injustice.

The complaint

1. Mrs D complained that the Council failed to make alternative educational provision for her child while they were unable to attend school for illness or other reasons.
2. As a result, her child was without an education from October 2024, causing the family distress and delaying her child’s development.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been, or could have been, referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. This means that if a child or young person is not attending school and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
7. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

9. I considered information from Mrs D and the Council and:
• The Special Educational Needs and Disability Code of Practice ("the Code")
• The Special Educational Needs and Disability Regulations 2014 (“the Regulations”)
10. Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Alternative educational provision

11. The Education Act 1996 says that if a child of compulsory school age cannot attend school for “reasons of illness, exclusion from school or otherwise” the local authority must make arrangements to provide suitable education either at school or elsewhere, such as at home. The duty applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend. (Education Act 1996, section 19(1))
12. The law does not specify when alternative educational provision should begin, but statutory guidance states local authorities should ensure pupils are placed as quickly as possible. They should arrange provision as soon as it is clear an absence will last more than 15 days.
13. When a child refuses to attend school or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. If not, it needs to decide how many hours of what type of education it should provide. If the council offers a child less than full-time education, it must regularly review the situation.
14. The Courts have found that it is a judgment for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
15. The section 19 duty does not apply simply because a parent refuses to send a child to the educational provision. A judicial decision (R (on the application of G) v Westminster Council [2004] EWCA Civ 45) says that the education offered, regardless of its rejection by the parent, must have been “reasonably available and accessible” to the child.
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
17. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
18. When reintegration into school is anticipated, councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence.
19. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

Special educational needs

20. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. Section 42 of the Children and Families Act 2014 creates an "absolute duty" on local authorities to ensure that the SEN provision specified in an EHC plan is delivered.
21. Parents have a right of appeal to the Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.

What happened

22. Mrs D’s child, J, has special educational needs and started at a mainstream secondary school (“the School”) in September 2024. J struggled to attend and the School made some adjustments, including a reduced timetable, enabling a soft start, no sanctions for lateness, and seating plan changes. But J stopped attending in October.
23. Mrs D emailed the Council on 23 January 2025. She said J had been unable to attend the School since October 2024 and asked the Council to make alternative provision. There was a meeting on 25 February to discuss this.
24. Mrs D complained to the Council on 26 March that she had heard nothing since the meeting. She self-funded J to attend a specialist small group learning support setting for seven hours a week over two days.
25. The Council replied to the complaint on 9 April. It accepted that it had had a duty under section 19 of the Education Act 1996 to make alternative provision for J since January 2025 but this had not been provided. The Council would source appropriate alternative provision.
26. Mrs D remained dissatisfied and asked for her complaint to be escalated. She said the Council had not provided any details of the alternative provision or given any indication of when it would be delivered. The Council had said J would be reintegrated back into school but had given no details of how this would happen.
27. In May, Mrs D suggested an alternative provider to the Council. She came to the Ombudsman in June as she had not had a final complaint response and there was no education in place for J.
28. The Council issued its final complaint response on 23 June. It apologised for the delay. It said it had been searching for suitable alternative provision but none had been available or suitable. J could not be reintegrated into school until their education, health and care needs assessment had been completed.
29. Some tuition for one subject was provided to J in July. J’s final EHC plan was issued on 1 August 2025, naming the School. Mrs D appealed to the Tribunal about the plan, including about the school named in it.

My findings

30. The Council has accepted that it had a duty to make alternative educational provision once it became aware in January 2025 that J was not able to attend the School for illness or other reasons. It did not put any provision in place until July 2025 and this was not a full, suitable education. This is fault and has caused J to miss out on education for two school terms (from January to July 2025).
31. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
32. Our guidance on remedies says where we find fault has resulted in loss of educational provision, we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. My view is that £2,000 per term is an appropriate amount. In reaching that view I have taken into account that year 7 is a significant period in a child’s school career but also that it is likely J would not have been able to have a full-time education.
33. We have investigated a number of cases where we found fault in the way the Council dealt with its section 19 duty to arrange alternative education for children out of school. As a result of our recommendations, the Council has produced an action plan of how it will avoid recurrence of the same faults and is developing its approach to managing provision following 15 days of school absence. I therefore do not make any further recommendations for service improvement.
34. Mrs D says J is still not receiving an education or the SEN provision set out in the August EHC plan because the School is not suitable so J cannot attend. As set out in paragraphs 5 and 6, we cannot investigate loss of education if someone has appealed to the Tribunal about the same matter. This is even though there may be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin)

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Action

35. Within a month of my final decision, the Council has agreed to pay Mrs D £4,000 to remedy the loss of J’s education for two terms.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman